The New I-9: Getting It Right The First Time

Unless you have made it your policy to illegally hire workers, you have had to contend with the I-9. That form verifies that anyone in your employ is legally allowed to live and work in the United States.

The form itself is straightforward, as federal documents go. Workers fill out Part A with their names, addresses, and identification documents. Employers fill out Part B, saying that they have checked everything and all is copacetic.

So why do so many employers trip over this little form and fall face-first into trouble with the feds? Well, for one thing, until May 7, when a modified version of the I-9 was issued by the federal Department of Labor, a lot of employers simply didn’t realize they had to do it. Others, maybe, were hoping to get away with something. But M. Trevor Lyons, a labor and employment attorney and partner at ConnellFoley in Roseland, says most issues he sees when he audits a business’ paperwork are the result of minor assumptions or simple carelessness. It’s just that the feds don’t see the errors as small at all.

Lyons will be one of four speakers at the New Jersey Business & Industry Association’s “Digging Deeper: Advanced HR Topics All Businesses Need to Know” event on Wednesday, July 31, at 8:30 a.m. at the Pines Manor hotel in Edison. The other speakers are Jeffrey Corradino of Jackson Lewis, Joseph DeBlasio of Giordano, Halleran & Ciesla, and Christopher Coxson of Ogletree Deakins. Cost: $169. Visit www.njbia.org or call 609-393-7707, ext. 219.

Lyons grew up in New York City, where both his parents were teachers. In the 1980s his father “decided he wanted to make some real money” and left teaching to open an appraisal company on Wall Street, when the city was flush with high-powered wheelings and dealings. Lyons went to Johns Hopkins to study political philosophy, only to find that the field was not for him. He earned his bachelor’s in 1992 and entered law school at Washington University. He earned his J.D. in 1996.

Lyons moved back north, settling in New Jersey because he wanted to be close to his family, “but not too close,” he says. From the outset he was interested in labor and employment law and soonlanded at ConnellFoley. He now routinely audits companies’ paperwork to keep them off federal immigration authorities’ radar.

Immigration, of course, is at the core of the I-9 issue. Like many things, the I-9 has become political — the tool in the debate over what to do about illegal immigrants. And as of May 7 the newly tweaked I-9 has taken on new national prominence in the struggle to document anyone working in this country.

The penalties. Most companies are not such egregious violators of immigration law that the federal government has to shut them down, Lyons says. Sometimes there are fines. For each incorrectly filed I-9, a company can be fined $1,100. One or two mistakes might be let go, and fines may not amount to much. But fines can add up: clothing giant Abercrombie & Fitch made headlines for racking up more than $1 million in fines because of alleged undocumented workers.

Often, Lyons says, companies with a few violations will get a notice of procedural failure — essentially a slap on the wrist that allows employers to correct the problem and re-file the paperwork.

Targeted industries. Food producers often make the news for violations regarding illegal workers. In the past eight years seven major food producers, including Del Monte and Purdue, have been accused of fudging hundreds of I-9 forms. And with billions in annual revenues, the fines are at most a small annoyance for mega-ticket companies.

But Lyons says that a major focus of the new I-9 is the construction industry. Much of the reason construction companies go astray, he says, has to do with erratic work schedules. Day laborers, after all, are common on construction sites. They work today, he says, but then maybe not again for six months. Employers, in turn, may be tempted to simply bypass the regulations, as they only need one body for one day here and there. Lyons, however, has seen construction companies get fined for up to $30,000 for such gambles.

Temp agencies, on the other hand, don’t seem to be an issue, Lyons says. An agency hires, then places, a person. Even if he works one day and not again for six months, he is on file as an employee of the temp firm.

Common errors. Most employers who catch the eye of an auditor, federal or otherwise, are not playing any elaborate shell game with the feds, Lyons says. Usually, at least in his experience, a problem with the feds is due to one of two common mistakes.

Mistake one is when an employer demands specific forms of ID from a new hire. The I-9 has three columns of acceptable documents. Column A includes documents such as passports, which are considered acceptable on their own. Columns B and C ask for various supporting documents, such as green cards. The problem, Lyons says, is that employers are not allowed to demand any specific combination of documents. Candidates may choose any combination according to the I-9’s instructions.

Mistake two is post-altering the form. Sometimes employers forget to date the form and go back and write in the date of hire. If they do so with exactly the same pen used on the rest of the form, Lyons says, they may get away with it, but often employers, thinking it’s not such a big deal, add in the date with a different color ink.

Related, sometimes employers see a minor error and use Wite-Out to correct it. Both these moves are illegal because the government considers them alterations to legal documents.

With the Digital Age upon us, employers can scan original documents and keep them electronically filed. Lyons says electronic recordkeeping is part of the reason for the new push to monitor I-9s and illegal workers.

But with all the recent ballyhoo about the new I-9, what’s so different about it? Not much, actually. There are a few new fields to fill out, but the biggest change is in the length of the instructions, Lyons says. The old I-9 had a page of instructions. The new one, about three.

Still, he says, that’s significant inasmuch as it spells out more clearly what employers need to do and know when handling the I-9. Remember, the last thing you want is to give the federal government reasons to open your file. “We do a lot of audits,” Lyons says. “And it’s a lot better to have us do it than Immigration.”